December 2017 CWLN Newsletter

Events & Announcements:

Thanks for all the work you’ve done this year to help implement the Human Right to Water. We’re thankful to have you in the Community Water Leaders Network and look forward to continuing our efforts in 2018.

As a reminder, the Community Water Center will be closed from December 23rd, 2017 until January 7th, 2018 and the December Network briefing call is cancelled. Check out a snapshot of what we accomplished in 2017 below and consider donating to support continuing efforts to secure safe and affordable water here. Have a great end of your year!

Water Justice Leadership Awards

Wednesday, February 7th, 2018

5:30-8:00PM

Mayahuel

1200 K Street

Sacramento, CA 95814

Join us as we come together with community partners, legislative allies, and ally organizations that have all contributed to the water justice movement, like yourself! There will be a short awards ceremony followed by an opportunity to connect with Sacramento partners over food and drinks. At the event, we will highlight the Community Water Leaders Network and will recognize members as a collective group on stage. I will be following up as the date approaches to gather your reflections on all the great work you’ve done to support the Human Right to Water this year. More information on tickets can be found here.

Regional and State Updates:

New Ruling on Prop 26 May Affect SGMA Implementation –

City of Buenaventura v. United Water Conservation District

At the start of December, the California Supreme Court issued a new ruling on Prop 26 which provides some guidance on how groundwater fees may be assessed and appears to provide protections for non-agricultural groundwater users. As background, Prop 26 was passed after Prop 218 in order to increase the protection for voters from tax increases by local agencies. Prop 218 provides that before taxes or fees related to property ownership (such as water or sewer fees) are increased they must be subject to voter approval and must be proportional to cost of service. Prop 26 expands the definition of “tax” to include any charge by a local government, not specifically limited to those charges related to property ownership. Charges that confer a special benefit to someone for a governmental service or product, as opposed to general revenue raising, are not subject to Prop 26 so long as they bear fair or reasonable relationship to the benefit to the person paying the fees. The aftermath of these two propositions is that taxes are defined as something which is for general revenue raising purposes, whereas a fee is related to a specific benefit given to the payer.

In the recent case, the City of Ventura sued the local water conservation district arguing the groundwater fees imposed upon the City by the District were in violation of both Prop 218’s requirement that fees are proportional to cost of service and in violation of Prop 26’s requirement that fees “bear a fair or reasonable relationship to the benefit to the payer”. The fees imposed on the City by the District were created to be in compliance with Water Code Section 75594 which states conservation districts cannot charge agricultural groundwater users less than three times and no more than five times the fees imposed on non-agricultural users. The Court held that the Prop 218 argument was not relevant since the fees were not related to the City’s property ownership, but instead held that the groundwater fees paid by the City to the District are subject to Prop 26 and sent the case back to the appeals court to determine if the fees do “bear a fair or reasonable relationship” to the benefit the City receives from the District.

How this impacts SGMA is still murky, however, there are a few key points that can be taken from the case: 1) Groundwater charges not-related to property ownership are not subject to Prop 218 and instead are covered by the less demanding Prop 26; 2) Previously Prop 26 was interpreted to mean that fees must comply on a parcel by parcel basis but the Court grants local governments a measure of flexibility in setting fees, stating when a district is implementing a “statutorily mandated conservation program, cost allocations for services provided are to be judged by a standard of reasonableness with some flexibility permitted to account for systemwide complexity.’”[emphasis added] Meaning similar users could be grouped together for the sake of setting fees. 3) The court hinted that Water Code Section 75594’s requirement that agricultural groundwater rates must be at least three times less than other uses (three-to-one rule) may violate Prop 26, but declined to rule on the matter, leaving the door open for another lawsuit. If at a later date the three-to-one rule is determined to be in violation of Prop 26, this will make it very difficult, if not impossible, to charge agricultural users of groundwater less than other users. Finally, since SGMA authorizes different types of fees and charges, GSAs will need to analyze their proposed fees to determine what type of fee or charge it is and thus whether Prop 218 or Prop 26, if either, apply.

On December 14, 2017, the State Water Board approved an early effective date for the maximum contaminant level (MCL) of contaminant 1,2,3-Trichloropropane (1,2,3-TCP), which is the cancer causing chemical that has caused contamination of California soil since the 80s due to extensive application of soil fumigants manufactured by Dow and Shell Chemicals. Water systems are required to start quarterly monitoring for 1,2,3-TCP in the calendar quarter beginning January 2018. Water systems may be allowed to use previously collected samples for up to three quarters in order to meet the initial monitoring requirements. More information about initial monitoring substitutions can be found in Subsection 64445(i) or by contacting your local Division of Drinking Water District Office.

If your system is impacted by 123-TCP, in order to obtain cost recovery your system needs to obtain legal representation in order to sue the responsible parties, Shell and Dow Chemicals, for 1-2-3 TCP contamination. Robins Borghei LLP is the primary firm litigating 123 TCP cases and has a strong track record in winning cases on behalf of communities dealing with 1-2-3 TCP contamination. Litigation can take anywhere from a year to 3 or more years, so if you are impacted by 1-2-3 TCP and are in need of financial assistance to come into compliance with the new MCL, there are funding sources at the state available for eligible entities. The primary funding source is the Drinking Water State Revolving Fund (DWSRF), and the Prop 1 Groundwater Grant Fund is also a secondary option to cover instances where the DWSRF doesn’t cover. In order to qualify for state funding sources you will likely be required to show you are initiating efforts to recover costs from the responsible parties. For any questions, contact the State Water Resources Control Board.

Irrigated Lands Regulatory Program (ILRP) Public Hearing Update

Community Water Leader Lucy Hernandez, community residents and activists, and CWC staff who traveled to Sacramento to speak about their experience with unsafe water due to nitrate contamination.

The Irrigated Lands Regulatory Program (ILRP) regulates irrigated agriculture in California to reduce or prevent water contamination due to farming practices. Over the years CWC and the AGUA Coalition have stayed closely involved in the ILRP process as several San Joaquin Valley communities have lacked safe drinking water due to ongoing nitrate contamination, some for decades.

Currently the State Water Board is in the process of revising the East San Joaquin ILRP Order, which manages the irrigated lands in the East San Joaquin Watershed. A second draft Order was released this September, and on December 6th, 2017 the State Water Board held a workshop to hear comments from stakeholders and the public on the Order. CWC presented alongside allies from Leadership Counsel for Justice and Accountability, Clean Water Action, and community partners Lucy Hernandez from West Goshen and Cristobal Chavez from Porterville, on our continued concerns about the Order’s lack of enforceable targets for nitrate application and other important improvements that are needed in the Order. We will continue to work alongside our community partners and allies to ensure a strong Order that will result in the continued sustainability of the Central Valley.

$9.5 Million Available for Drinking Water in Schools

The California State Water Resources Control Board has $9.5 million in grant funding available through the Drinking Water for Schools Program, which may be used to install water bottle filling stations or drinking water fountains, and for interim water supplies and treatment devices for schools where contamination is an issue. Local Educational Agencies (LEAs) are eligible to apply for these funds, including schools that serve kindergarten through 12th grade, and preschools and daycares that are located on school property. During the first nine months, the program is open only to LEAs that serve Disadvantaged Communities (DAC) with a population of less than 20,000. County offices of education are encouraged to apply on behalf of multiple small districts within their jurisdiction, which can reduce costs through joint purchasing and contracting.

If your school or district is interested in learning more about this exciting new opportunity to improve student access to safe drinking water you can access the guidelines and application here or contact Kim Hanagan, State Water Resources Control Board at (916) 323-0624.

Rural Community Assistance Corporation was selected by the State Water Resources Control Board to provide technical assistance during the grant application and implementation period. Contact us at agua4all@rcac.org for more information.

State Water Board Translations for Consumer Confidence Reports (CCR) Templates

Last May, the ACLU (American Civil Liberties Union) of Northern California sent a letter to the State Water Resources Control Board requesting that the State Water Board make available translated CCR templates so that public water systems could use the templates and ensure that consumers receive these reports in the required languages. Previously, the Board only provided the template in English and it became evident that many public water systems were using the exact template but not translating it themselves. Because of this, many non-English speaking communities only received the CCR in English. ACLU NC has been working with the State Water Board’s Chair to ensure the templates are translated and there are now two additional versions available: one in Spanish and one in Hmong. The Board plans to provide additional translations in 2018 but for now, water boards are encouraged to use these templates to work to ensure all members of their communities can read and understand their CCR report.

The Alliance is a Joint Powers Agency (JPA) that includes East Orosi Community Services District, Sultana Community Services District (representing the communities of Sultana and Monson), and Tulare County (representing communities of Seville and Yettem). This JPA was formed in a collaborative effort, facilitated by CWC along with RCAC, to plan shared solutions and access financial resources for a sustainable water future for the communities of the NTC region.

The Alliance had its second meeting on December 13th and will be selecting a Technical Assistance provider to help the Alliance conduct planning studies that can lead to a sustainable drinking water project to improve reliability of the water quality and water supply of these communities and possible other nearby communities. The first study is an Alternative Analysis that will compare various options of providing improved drinking water. The surface water treatment plant that has been under consideration for several years will be one of the alternatives. Once an alternative is selected, planning and design can move the project toward an eventual construction phase.